Correspondence
| Published date | 01 September 1974 |
| Date | 01 September 1974 |
| DOI | http://doi.org/10.1111/j.1468-2230.1974.tb02405.x |
SEW.
1914
REVIEWS
599
by the themcs.
For
the student
or
expert of labour law and social security,
the Report should be considered not
so
much as a specific study, thollgil the
national contxibutions arc sonietirnes very thorough, but
ns
a
good piece of
conceptualisation and open-mindedness which has obvious merits as a book
of reference for policy makers.
‘rI1OMAS hlJEIIltk.
CORRESPONDENCE
‘hE
EDX’TOR,
The Modern
Law
Rewiew.
Supply
of
Qoods
(Implied
Terms) Act
1973
Dear Sir,
I
should like to take
up
a
point made by Christopher Carr in his note on
the Supply of
Goods
(Implied Terms)
Act
1973
[(1973)
86
M.L.R.
6191.
In
dealing with the implied terms in the new section
12
(2)
of the Sale of Goods
Act
1893,
Mr. Carr suggests that there is
a
dsifficulty in referring, as section
12
(2)
does, to contract
of
sale” in which the seller transfers only
a
limited title.
He
seems to regard
a
transfer of
a
limited title as falling
outside the ambit of section
1
altogether, apparently on the grounds that the
gencral property cannot pass if the seller does not sell
a
perfect title. I-Ie
asks “how, in an agreement to transfer the property in goods, can there be
an agreement
to
transfer only such title
as
the seller has?” May
I
suggest
that the answer to that question
is
thlis:
‘‘
Property” in goods does not mean
$‘a
pcrfect title” to goods.
It
means, in tlie words of section
62
(l),
“thq
general property in goods, and not merely
a
special property.”
In
other
words it refers
to
the absolute legal interest in or, if one prefers the term,
ownership of the goods,
as
opposed to the limited interests such as those
of
a
pledgee, hirer
or
other bnilee, which are examples of special property.
Section
1
therefore lays down the kind of interest which
is
the subject of
a
contract of sale, namely gencral
property/ownership/absolute
legal interest.
From this must be distinguished the title to that interest. In English
property law there is
a
basic distinction, to be found in sale of goods
as
much
as in sale of land
or
of intangible personalty, between the interest being
transferred and the vendor’s title to
(or
right to enjoy) that interest. Failure
to
appreciate this basic point lies at the root of
so
many of the apparent
problems relating to
the
proprietary aspects
of
sale of
goods.
The Act, after
all, codified common law principles; it did not invent unheard-of concepts
which
it
then unhelpfully refused to define.
I
imagine that Sir Mackcnzic Chalmers was well acquainted with this basic
distinction between interest and title, and that he never saw any difliculty
about reconciling section
1
with section
12.
Section
1
defined the type of
transaction to which the Act applied-transfers of gcncral property-biit
whether the scllcr undertook to guarantee his title to that general property
was a mattcr to be considered along with all thc other guarantees about tlie
goods in sections
12-18.
It
was not until Atkin
L.J.
uttered his unfortunate
dictum in
Rowland
v.
Dikrall
that the confusion of title with interest appearcd,
and, iegrcttably, this dictum, uttered in the course
of
nn unreserved judg-
ment and patently at variance with the sanic Lord Justice’s earlkr views in
Niblett
v.
Confectioners’ llrlnterials Co.,
has been seized upon nnd given the
weight of
a
statutory rule. The argument over this dictum and its consequent
effect on the exclusion of section
12
has,
of
course, raged for some years, but
one would have hoped that the
1973
Act had finally laid this one to rest. It.
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